July 21, 2020 | Vol. 220


MUST READS
(7 summaries)
NOTEWORTHYIF YOU MUST READ



Med Mal   Motion to Dismiss   Duty  

First Department
Hospital granted summary judgment of claim that it failed to timely commence outpatient physical and occupational therapy because carrier delayed approving treatment. A medical provider has no duty to accept a patient for treatment generally, and specifically where there is no payment. Both the Emergency Medical Treatment and Active Labor Act and Public Health Law §2805-b only apply to an immediate need for hospitalization not after hospitalization care as alleged by plaintiff. Public Health Law §2805-b has no private cause of action for monetary damages. Espinosa v Montefiore Med. Ctr.


Premises Liab   Motion to Dismiss   Statute of Limitations   Estate  

Second Department
Original action dismissed 1-year after accident when plaintiff learned abutting landowners had died years earlier. Subsequent action started 1-year after administratrix appointed, more than a year after statute of limitations, dismissed as plaintiff was aware of landowners’ death 2-years before statute of limitations and did not petition Surrogate Court for appointment of public administrator under SCPA §1002. Aurilia v Carbonara


Motion to Dismiss   Notice of Claim  

Second Department
Plaintiff met heightened standard of showing “such relevant proof as a reasonable mind may accept as adequate to support a” question of fact on negligence in opposition to engineers’ pre-answer motion to dismiss under CPLR §3211(h) with pre-action deposition testimony of defendants’ representative that railings are used on piers to prevent pedestrians from falling into the water, and main pier where plaintiff’s decedent fell into water was open to pedestrians in an area where boats could not moor. Plaintiff not required to prove claim by a preponderance of the evidence on motion. Golby v N & P Engrs. & Land Surveyor, PLLC

Comment: A reminder of the Notice of Claim requirement and pre-action discovery for suits against licensed architects, engineers, land surveyors, or landscape architects or their practices under CPLR §214-d and the heightened standard to oppose a motion for summary judgment under CPLR §3211(h).

Med Mal   Renew   Reasonable Excuse  

Second Department
Plaintiff’s motion to renew opposition to PA’s and emergency medical service company’s motion for summary judgment based on affidavit of a physician’s assistant not retained or provided in original motion and a further affidavit of an orthopedist denied. A court may consider facts known but not included in original motion but only on a showing of reasonable justification for not initially including them. Retention of a new expert is not a proper basis for renewal and plaintiff failed to provide reasonable justification for not including facts in orthopedist’s second affidavit. In any event, submissions would not have changed the result. Feurderer v Vassar Bros. Med. Ctr.


Workers Comp   Grave Injury   Indemnity  

First Department
Third-party employer denied summary judgment of common law and contractual indemnity and contribution claims where defendant submitted Social Security Administration decision finding plaintiff was “unable to perform any ‘past relevant work’ and that there are no jobs in the national economy that he can perform,” at least in part because of brain injuries from accident raising a question of grave injury. Goundan v Pav-Lak Contr. Inc.


Attorney Fees  

Second Department
Suspended attorney entitled to quantum meruit fee based on qualitative value of services rendered before suspension regardless of whether there was a fee splitting agreement with attorney he referred case to, which is not binding but should be considered. Ragland v Molloy


MVA   Set Aside Verdict   Motion in Limine   Reckless   CPLR § 3101(d)   Admissibility   Jury Charge   Preclusion   Frye   Materially Deviates  

First Department
$12 million verdict set aside and new trial ordered on liability and damages where trial court truncated proof on whether salt spreader was public or private vehicle relevant to whether jury should be charged with reckless standard under VTL §1103 or negligence under VTL §1163 and erred in precluding accident reconstructionist after court’s in limine inquiry regarding scientific studies that were not relevant since accident reconstruction and reaction times are not novel theories subject to a Frye hearing. Reconstructionist’s proposed testimony not entirely speculative and anything beyond the CPLR §3101(d) should have been handled by limiting the testimony, not precluding it. Plaintiff failed to preserve inconsistent verdict argument for jury’s award of future damages for only 3-years, but $12 million award for 3-years materially deviated from reasonable compensation. Defendants’ medical expert was improperly barred from giving opinions on whether injuries were traumatic, surgeries necessary, and whether future surgery would be needed. Cabrera v Port Auth. of N.Y. & N.J.

NOTEWORTHY
(22 summaries)
MUST READSIF YOU MUST READ

Vacate Default   Reasonable Excuse   Amend BP  

Second Department
Plaintiff’s motion to vacate default and restore action twice dismissed under 22 NYCRR 202.27 for failure to go forward with trial denied where plaintiff failed to give reasonable excuse for not proceeding with trial. Motion to amend BP was denied and supplemental BP, in fact an amended BP, served after action was dismissed the second time was a nullity and did not provide a reasonable excuse for not going forward. Meritorious action issue moot absent reasonable excuse. Campbell v Dwyer


Med Mal   Accepted Practice   Causation   Question of Fact   Expert Aff  

Second Department
Physician denied summary judgment as medical record with no indication he was present during resuscitation efforts after infant was born with an Apgar score of 1 did not eliminate all questions of fact where he testified he could have been there and helped with resuscitation but had no memory of the events. Other doctor met burden for summary judgment by expert opinion that she did not depart from accepted practice by initially attempting resuscitation with positive pressure ventilation (PPV) but plaintiff’s expert’s opinion that attempt of PPV instead of intubating infant within 15-20 seconds of birth given Apgar of 1 was a departure and cause of brain injuries raised issues of fact. E.K. v Tovar


Serious Injury   ROM   Preexisting   Degenerative   Causation   Expert Aff  

First Department
Plaintiff raised issue of fact on serious injury for cervical spine by radiologist report finding multiple bulging discs and treating doctor’s finding of limited ROM shortly after accident, four years later, and opinion it was causally related to accident. Plaintiff’s own medical records did not have evidence of pre-existing degenerative conditions noted by defendants’ radiologist, so plaintiff’s physicians did not have to address pre-existing degeneration. Plaintiff raised issue on shoulder injury by treating doctor’s findings of limited ROM shortly after the accident and four years later, surgery for a labral tear, and opinion it was causally related to accident. That plaintiff did not initially complain of shoulder but sought treatment within a month did not break causal connection but raised question of fact. Guzman v Cruz


MVA   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice   NYC  

Second Department
Police report indicating “no damage” to petitioner’s car did not connect injuries to negligent conduct necessary to give actual notice to NYC. Plaintiff’s claim of prior attorney’s law office failure insufficient to give reasonable excuse for almost 1-year delay in seeking leave to serve late Notice of Claim and plaintiff failed to present evidence or argument that NYC was not prejudiced where delay prevented it from investigating and interviewing witnesses while facts were still fresh in their minds. Matter of Lugo v GNP Brokerage


MVA   Pileup   Set Aside Verdict   Directed Verdict  

Second Department
Motion to set aside verdict based on insufficient evidence and for judgment as a matter of law by 2-defendants respectively found 5% and 25% at fault by jury denied where verdict could be reached on a valid line of reasoning and permissible inferences on liability and causation. Shoshari v Herrera


Labor Law §240   Question of Fact  

Second Department
Plaintiff’s submissions including his deposition testimony failed to establish that his fall from a scaffold while clearing debris from a fire on a roof occurred on the unit owned by the corporate defendant. Mere allegation in verified Complaint was insufficient to eliminate all questions of fact on this issue. Summary judgment for plaintiff denied. Martin v Hillside Enters., LLC


Premises Liab   Slip/Trip   Motion to Dismiss   Statute of Limitations   Notice   Out of Possession   Amend Complaint  

Second Department
Owners of property with restaurant where plaintiff tripped and fell in parking lot failed to show they were out of possession owners where ground lease gave them right to reenter and do anything to have premises comply with conditions of lease. On motion to dismiss based on documentary evidence defendants’ affidavits do not constitute documentary proof and ground lease failed to utterly refute plaintiff’s allegations. Motion to dismiss granted as to 2-owners who were served with amended Complaint adding them as parties after the statute of limitations as relation back doctrine did not apply absent proof they had notice of the original complaint served on a third owner before the statute of limitations. Third owner’s claim that original complaint was not sufficiently particular to give notice of the claim since it inaccurately identified the street name rejected as it was properly corrected with the amended Complaint without leave of court. Statute of limitations as to that owner timely on service of original Complaint. Pirozzi v Garvin


Labor Law §241   Industrial Code  

Second Department
Construction worker injured when he jumped off stopped truck to place traffic sign for construction work failed to establish industrial code § 23-9.7(e) requiring a seat while riding in a truck applies to exiting a truck that is stopped. Plaintiffs’ interpretation contradicts plain language of the code and would add to the regulation’s meaning. Summary judgment for defendants. Wetter v Northville Indus. Corp.


Dangerous Condition   Notice   Unknown Cause   Open/Obvious  

Second Department
Dumpster company denied summary judgment where plaintiff injured when his foot got stuck in bent top rung while descending 3-rungs on side of dumpster as testimony and photographs submitted by defendant failed to make out prima facie case that rung was not a dangerous condition, that plaintiff was unable to identify cause of accident, and that condition was not visible and apparent and existed for sufficient time for defendant to repair. Rosales v Five Star Carting, Inc.


Premises Liab   Duty   Intervening Cause  

Second Department
Operator of Resorts World Casino in Queens granted summary judgment where plaintiff was sexually assaulted off-premises by a patron who along with another man bought her and her friend shots at the casino bar after which her memory became fragmented, she became intoxicated, and her and her friend left the bar with the two men. Casino’s duty limited solely to acts committed on its premises including its duty to control third persons on its premises where it could control their actions and was reasonably aware of the need to do so. Stenson v Genting N.Y., LLC


Premises Liab   Slip/Trip   3rd Party Contractor   Espinal  

Second Department
Maintenance company granted summary judgment on proof it did not launch instrumentality of harm under Espinal by waxing floor and plaintiff failed to raise an issue in opposition. ‘In the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence.’ Union v Excel Commercial Maintenance


Premises Liab   Duty   Question of Fact  

Second Department
School denied summary judgment where infant pressed hand on glass which shattered where it failed to submit proof it was not required to install shatterproof glass. Kc v Half Hollow Hills Sch. Dist.


Prior Written Notice   Slip/Trip   Snow/Ice   Admissibility  

Second Department
Town obligated by contract to clear snow from Village’s streets and Village granted summary judgment where plaintiff fell on accumulated snow in street on proof they did not receive prior written notice of snow condition as required by local codes. Affidavits of Town employees who searched records admissible even though not previously disclosed as they were not notice witnesses. Brower v County of Suffolk


Premises Liab   Slip/Trip   Unknown Cause   Notice   Last Inspection  

Second Department
Group home denied summary judgment where occupational therapy assistant slipped and fell on driveway as deposition testimony submitted by defendant raised question of whether numerous cracks in driveway caused plaintiff’s accident and general cleaning/inspection testimony establishing last inspection 7-weeks before accident and maintenance department inspections every month was insufficient to eliminate constructive notice issue of defendant’s notice within time to repair. Defendant failed to show defect was trivial. Croshier v New Horizons Resources, Inc.


Premises Liab   Slip/Trip   Create Condition   Notice   Last Inspection  

First Department
Bodega failed to meet burden of showing it did not create a dangerous condition or have actual notice of one absent a specific affirmative showing and failed to show its cleaning/inspection activities on the day of the accident as its witness testified he was on vacation on that day. Ruiz v Stop 1 Gourmet Deli


Premises Liab   Elevator   Out of Possession   Notice   Unknown Cause   NYC  

Second Department
NYC failed to submit evidence to establish it was out of possession owner with no contractual duty to maintain elevator in library where librarian tripped on mis-leveled staff elevator. NYC also failed to eliminate lack of constructive notice or that plaintiff could not identify cause of her fall. Muller v City of New York


Premises Liab   Slip/Trip   Notice   Warnings  

Second Department
Ale house failed to meet burden of showing accident was not caused by its failure to correct the hazardous condition within a reasonable time after having notice. The presence of a nearby warning only satisfied duty to warn, not duty to maintain premises in a safe condition. Generoso v Miller


Premises Liab   Construction Liab.   Falling Object   Premature Motion   Discovery  

Second Department
Construction company met burden for summary judgment on proof it did not perform any work on the structure plaintiff described as a scaffold from which a plank fell and hit him but codefendant, NYCHA, showed discovery might lead to information necessary to oppose the motion. Johnson v New York City Hous. Auth.


Premises Liab   Slip/Trip   Sidewalk   § 7-210   Question of Fact  

First Department
Plaintiff raised issue of fact in opposition to 1-defendant’s showing of entitlement to summary judgment by lease provision requiring defendant to maintain sidewalk where plaintiff tripped on uneven brick pavers contradicting defendant’s representation that it had no contract obligating it to maintain sidewalk. Alfani v Rivercross Tenants Corp.


MVA   Rear End   Pileup  

Second Department
Limousine driver and company granted summary judgment on proof limousine carrying plaintiff was stopped when rear-ended. Claim by Plaintiff and rear most vehicle that limousine stopped short insufficient to raise issue of fact. Ross v JFC Intl., Inc.


Premises Liab   Dangerous Condition   Notice  

Second Department
Building granted summary judgment where plaintiff fell after being struck by automatic closing doors on proof that door activating system was replaced 2-months earlier, there were no complaints of malfunctions in that time, and daily inspections showed it operated in compliance with industry standards. Alkon v North Shore Towers Apts. Inc.


Pothole Law   Prior Written Notice   De Minimus  

Second Department
Yonkers granted summary judgment where infant tripped on recessed water valve in street while playing basketball as defect was trivial and surrounding circumstances did not create a tripping hazard or nuisance. Prior written notice issue lower court granted summary judgment on moot on finding of trivial defect. Acevedo v City of Yonkers

IF YOU MUST READ
(3 summaries)
MUST READSNOTEWORTHY

SUM   Stay Arb  

Second Department
Carrier denied permanent stay of SUM arbitration where policy was issued to LLC which is more akin to partnership than corporation and policy language defined insured as named insured and relatives living with insured at time of accident and included free spousal liability coverage. Pedestrian was sole owner of LLC. Matter of United Fin. Cas. Co. v Tekel


Premises Liab   Slip/Trip   Unknown Cause   Speculation  

Second Department
Restaurant granted summary judgment on proof plaintiff could not identify cause of her fall without speculation. The court does not give the details of the proofs. Von Euw v Frisco, LLC


Serious Injury  

Second Department
Defendants failed to make out prima facie entitlement to summary judgment on serious injury. The court does not give the details of the proofs. Tarnagorski v Donofrio

About Matt McMahon

Civil trials and appeals since 1984
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